‘Gov’t had to amend act to deal with a public health emergency’

Parliament’s amendment to the Emergency Management Act made provision for the declaration and management of a public health emergency.

Queen’s Counsel Leslie Haynes put forward that submission and argued that the provision was needed as it was not contained in the Emergency Powers Act which he described as the pre-war Act of 1939.

“There was nothing in the legislation or the legislation was devoid of any specific reference to public health matters, far less a pandemic . . . . So the Parliament then passed Act No. 7 of 2020 with COVID in the air,” he stated.

Haynes further stated that when one looked at the Emergency Management Act which was passed in 2006, it was clear that, the Act did not cater for a public health emergency. Rather, he said, it catered to disasters such as we in the Caribbean are accustomed – floods, hurricanes . . . other disasters whether natural or otherwise.

“So that with COVID in the air it was necessary for Parliament to . . . introduce the Emergency Management Act to make provisions for the declaration and management or a public health emergency,” the Queen’s Counsel said as he delivered his closing arguments on four lawsuits – brought by Opposition Senator Caswell Franklyn, shopkeeper Adrian Kellman of Kermit’s Bar and Benson Straker of Benson’s Minimart – against Government’s COVID-19 directives.

The legal action by Kellman is challenging the COVID-19 Monitoring Unit’s closure of his Thornbury Hill, Christ Church bar while Straker is suing the Attorney General and Commissioner of Police Tyrone Griffith, alleging they acted unlawfully and beyond their legal power of authority in enforcing the Emergency Management (Amendment) Act, which governs the directives.

Straker’s two cases pertain to Benson’s Minimart against the AG and the Commissioner and Ricky Straker against the Commissioner. Senator Franklyn is challenging the manner in which the Emergency Management Act was imposed by Government to control the spread of COVID-19. He claims the Government has been enforcing directives that have not been approved by Parliament.

But Haynes stated: “The amendment to the Emergency Management Act was necessary, Parliament thought, to adequately deal with the pandemic that was about to strike and for which provision had not been previously adequately made”.

With respect to the COVID-19 directives on exemptions pertaining to supermarkets, minimarts and shops the lead attorney who is representing the respondents along with counsels Gregory Nicholls and Kashawn Wood said there was nothing “vague” about COVID-19 Directive No. 3.

He quoted “ ‘For the avoidance of doubt minimarts that are not exempted and village shops commonly called corner shops, rum shops and village shops shall remain closed.’”

He spoke to the legal action being taken by Benson Minimart Limited.

“What we do know is that on being ordered to shut down by the constable on instructions . . . apparently he closed his business and never applied for an exemption. He never applied, never went to the authorities as he is allowed to do under the directives. Instead of using the avenues at his hand and given by the COVID directives he preferred to bring this action.

“So we say that he who alleges must prove and the lack of evidence is such that he hasn’t proven anything. There is no evidential basis upon which this court can make any findings in favour of this claimant,” Haynes submitted.

Earlier in the day attorney-at-law Neil Marshall who is representing  the claimants along with Queen’s Counsel Hal Gollop argued that regardless of whether Benson Minimart Limited was a supermarket, minimart or corner shop, the only person or entity that could order the closure of the business was the COVID-19 Monitoring Unit.

The order, he argued, given by the police officer was “unlawful” under the circumstances.

He also submitted before Madam Justice Jacqueline Cornelius that the penalties provided  are “ultra vires” (acting beyond one’s power or authority) when it comes to the amended Emergency Management Act 2020 and “ultra vires” of the Interpretation Act.
(fernellawedderburn@barbadostoday.bb)